Unmarried heterosexual couples
on both sides of the country are challenging domestic partner
employee benefits plans that are limited to same-sex couples.
Discrimination claims are currently pending before state
agencies in Massachusetts and Washington.

Jason Webster filed a complaint
against Partners HealthCare when the Massachusetts-based
employer refused his request to add his female partner to his
health plan. Sandi Scott-Moore filed a similar complaint
against Honeywell International with the Washington Human Rights
Commission.

More than 8,000 private employers
throughout the nation offer domestic partner benefits to their
employees. Most of these plans include same-sex and
opposite-sex couples.

Only one-third of these companies limit benefits to gay and lesbian
couples, according to Randall Abbott. Abbott is a senior
consultant of Watson Wyatt, an employment and compensation
consulting firm.

As
politically appealing as these complaints in Massachusetts and
Washington may be, they probably won't get very far in terms of
legal soundness. I should know the pitfalls of such claims
since I was involved in coaching employees in New York and
Illinois who filed similar lawsuits several years ago.

Paul Foray
filed a lawsuit against Bell Atlantic when the company refused
to provide health benefits for his female partner, although such
benefits would have been given if they had been a same-sex
couple. The case was originally filed in state court in
New York, arguing that same-sex-only employee benefits programs
were illegal under New York City's ordinance against sexual
orientation discrimination and New York state law against
marital status discrimination.

Byron
Cleaves filed a lawsuit in federal court against the City of
Chicago because the employer took adverse action against him
when he took time off from work when the father of his female
partner died. Had Cleaves and his partner been a same-sex
couple, such leave would have been permitted.

Both cases
were filed in 1998. Both had a similar result -- the
employers won and the cases were dismissed.

The Foray
case shifted from a state to a federal judicial forum after I
pointed out to Foray's attorneys that a federal law known as
ERISA prohibits states from regulating the health plans of
private employers. So Foray withdrew his claim from state
court and filed a federal discrimination lawsuit.

Ultimately,
the federal court ruled against Foray on the ground that the
first prerequisite to a claim of discrimination had not been
met, namely, that someone is not receiving a benefit which is
being given to another person who is "similarly situated."
According to the court, since opposite-sex couples can get
married and obtain the benefit that way, but same-sex couples
cannot marry, heterosexual partners and gay partners are not
"similarly situated."

Cleaves
tried a different approach, arguing that the City of Chicago
violated federal law against sex discrimination in employment.
The court rejected the argument, concluding that the basis of
the complaint was really about marital status
discrimination, a practice which is not illegal under federal
civil rights laws.

Although the
rulings in the Foray and Cleaves cases are not binding on civil
rights agencies or courts in Massachusetts or Washington, they
do suggest that heterosexual couples will have more than an
uphill battle to win benefits discrimination claims under state
laws and in state courts.

But the
court of public opinion is another matter. If Jason
Webster and Sandi Scott-Moore can generate enough publicity
about the unfair, if not illegal,
employment practices where they work, they might be able to pressure the
companies into broadening their benefits programs.

"It's marital
status discrimination," Jenny Pizer told the Associated Press
when asked about the Scott-Moore case in Washington. "You're
telling people, in essence, they will be paid less because they
can't get the same benefits," she said. Pizer is an attorney
with Lambda Legal Defense and Education Fund.

In the
Honeywell case, Scott-Moore can ask the company to put its money
where its mouth is. Honeywell has an entire page on its
website patting itself on the back for its commitment to
diversity.

"Today’s
rapidly evolving business environment requires an even more
demanding definition of diversity – one that . . . becomes
ever-more inclusive," the Honeywell website proclaims.

The website of Partners
HealthCare also boasts about its concern for "labor force
diversity."

How about these companies showing
some respect for family diversity by developing a more inclusive
benefits program for domestic partners?

Thomas F. Coleman, Executive Director of Unmarried America, is an
attorney with 33 years of experience in singles' rights, family
diversity, domestic partner benefits, and marital status discrimination.
Each week he adds a new commentary to Column One: Eye on Unmarried
America. E-mail:
coleman@unmarriedamerica.org. Unmarried America is a nonprofit
information service for unmarried employees, consumers, taxpayers, and
voters.